Citation Nr: 20006501 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 16-38 189 DATE: January 28, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Marine Corps on active duty from May 1988 to May 1992. Entitlement to TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). The Veteran is currently service connected for major depressive disorder rated at 50 percent, fibromyalgia rated at 40 percent, tinnitus rated at 10 percent and left thumb fracture which is currently noncompensable. With a combined 70 percent rating and his depression rated at 50 percent disabling, the Veteran meets the schedular criteria for an award of TDIU. 38 C.F.R. § 4.16(a) (providing that the schedular criteria are met if there are two or more service-connected disabilities with one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more); 38 C.F.R. § 4.25, Table I (Combined Ratings Table). The Board received the Veteran’s VA Form 21-0966 Intent to File a Claim for Compensation on April 7, 2015. The Veteran filed his application for TDIU on July 1, 2015. His application notes his last day of work was in June 2015. In July 2015, the Veteran submitted a letter from his employer indicating the employer became aware he had “extreme physical limitations, as well as mental health issues which” the Veteran feels were causing him significant cognitive difficulties. The employer stated the Veteran’s duties at the job “are physically demanding and require a high level of cognitive ability for safety purposes,” and a result, termination was in the best interest of both parties. An August 2019 VA medical source statement notes the Veteran experiences sleep pattern difficulties, fatigue, and chronic pain. The statement also notes due to the Veteran’s stress and anxiety he would require periodic brief breaks on an hourly basis. Finally, the statement indicates the Veteran would be absent from work at an estimation of more than 3 days a month. A September 2019 letter from a private licensed social worker, opines that the Veteran will have difficulty maintaining employment due to symptoms associated with his mental health and physical injuries. “Much of [the Veteran’s] difficulties center around memory, concentration, chronic pain, stress/startle response, sleep and energy issues. Symptoms of depression, anxiety and stress response escalate when routine or structure are interrupted.” The Veteran and his spouse testified at a hearing before the undersigned in September 2019. The Veteran’s spouse testified that the Veteran has sleep difficulties which cause him to be tired and nap throughout the day. The Veteran’s spouse stated that she knew the Veteran to be very good at diagnostics and has noticed these concepts now seem to be hard for the Veteran grasp and that he has trouble focusing. She also stated the Veteran sleeps very little at night. In October 2019, the Veteran was seen for a private PTSD evaluation and the private examiner opined the Veteran “does not appear capable of obtaining or maintaining regular employment.” The examiner noted the Veteran’s reports of severe difficulty concentrating, and moderate difficulty walking long distances, standing for a long time, and learning new tasks. The Veteran reported that nearly every day he has trouble falling and staying asleep. In November 2019, the Veteran submitted a private psychiatric examination. The VA examiner noted that his symptoms reflect a total occupational and social impairment. Unemployability is a legal determination, not a medical one. The Veteran meets the threshold rating for a TDIU, and the probative medical and lay evidence of record show that his service-connected disabilities cause a significant impact on his ability to work. The Board finds that the realistic chances of the Veteran obtaining and retaining employment must also be considered in light of his physical, mental, and educational capabilities. Although it is conceivable that there may be some occupations that the Veteran could perform, the totality of the evidence supports a finding that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment when his educational and work background are taken into consideration. The Board will resolve reasonable doubt in the Veteran’s favor and find that he has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. A TDIU is granted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Shannon The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.